Can Your Texts, Tweets and Facebook Posts be Used as Evidence in a Divorce Case?

Be careful what you post and text on your smartphone or computer. Messages about your divorce may wind up as evidence in your case.

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Most people in this day and age of technology, have a tablet, a PDA or a cell phone. Many have both a cell phone and one of the other two. Unfortunately, these devices have become a common weapon in divorce cases because of e-blogging, texts and voicemails.

Smart phones, which are only as smart as the people using them, have contributed to the temptation people have to document their divorce via texting their soon to be ex, or posting comments on Twitter or Facebook or all three. The “Smart” thing for you to do is put your phone away, walk away, think about it and take a deep breath. The reason for this is because your texts and your posts CAN be brought into a divorce case; as to whether they are or are not admissible, remains to be seen.

Facebook, Twitter and texts all have one unique and unfortunate feature, which is that it is almost impossible to authenticate who the real author is. A well-known, but not very funny joke on Twitter and Facebook is the fact that any phone left unattended is “fair game” for taking and posting many not very nice things on their so called “friend’s” account. If this happens, of course there is no way to authenticate the real author giving the phone’s owner plausible deniability to disclaim the texts or posts. This is especially true if the unattended phone has automated posting or a feature that allows you to sign in without a password.

What you should remember is that unless you have your phone tied to your hip, anyone can pick it up. The reality is that it is usually teen’s that do that because most adults do keep their phones tied to their hip, unless they lose it or it gets stolen in which case that could be a plausible reason for them to deny ownership of social media posts. Texts are different because they are usually sent in real time. This means that the two people sending and receiving texts messages are obviously involved in an ongoing conversation. These messages can be saved to the phone as a “page gif” or a pic of the open text screen that will show “bubbles” of the messages sent to and from another person with your cell number and name at the top, which will identify you as the author.

These “page gifs” make authenticating who the author is much easier, which will make bringing the texts up in court easier also. But, what happens if no one thinks to make a record of the texts? Well, here you have both good news and bad news, but that would depend on what your perspective is. Unfortunately, the court cannot subpoena the content of texts messages from the phone company because the phone company does not keep these records. But, they do keep records of the numbers people contact and that can be used to surmise the level of contact between the phones.

This means that if someone wants to discover your texts via a third party, they would need your or the other person’s cooperation to provide those texts. As of yet, there is not enough information as to if screen grabs of texts messages can be subpoenaed; however it is something that is foreseeable. Your smartest practice is to be safe rather than sorry later and if you just cannot resist posting to your social media pages or texting your soon to be ex, close those accounts and disable the texts option on your phone, or you could leave a “paper trail” that can be brought into court. You should even avoid speaking with anyone about your divorce case, or that person could be brought into court as a witness.

 

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